1. The provisions of the Kansas Code of Criminal Procedure govern proceedings in
all criminal cases in the courts of the state of Kansas. K.S.A. 22-2102. The
Code is intended to provide for the just determination of every criminal
proceeding. Its provisions are construed to secure simplicity in procedure,
fairness in administration, and elimination of unjustifiable expense and delay.
K.S.A. 22-2103.

2. As related to criminal law and procedure, "substantive law" is that which declares
what acts are crimes and prescribes punishment therefor, whereas "procedural
law" is that which provides or regulates steps by which one who violates a
criminal statute is punished.

3. Rules of practice and procedure contained in the Kansas Code of Criminal
Procedure are devised to promote the ends of justice, not to defeat them, and
orderly rules of procedure should not require sacrifice of the rules of fundamental
justice.

4. One of the substantial rights of an individual charged with a crime is the right to
due process. The essential elements of due process of law are notice and an
opportunity to be heard and to defend in an orderly proceeding adapted to the
nature of the case.

5. Rebuttal evidence is that which is presented to deny some fact an adverse party
has attempted to prove or has placed in dispute. The use and extent of rebuttal
evidence rests in the sound discretion of the trial court. The ruling of the trial
court will not be ground for reversal unless it appears discretion has been
abused to an appellant's prejudice.

Appeal from Wyandotte district court; J. DEXTER BURDETTE, judge. Opinion filed
January 23,
1998. Affirmed in part, reversed in part, and remanded for further proceedings.

Debra J. Wilson, assistant appellate defender, argued the cause, and
Jessica R. Kunen, chief
appellate defender, was with her on the brief for appellant.

Terra D. Morehead, assistant district attorney, argued the cause, and
Nick A. Tomasic, district
attorney, and Carla J. Stovall, attorney general, were with her on the brief for
appellee.

The opinion of the court was delivered by

LOCKETT, J.: Defendant Solly Thompkins appeals his convictions for first-degree
premeditated murder and burglary. He contends that the trial court erred in
instructing the jury on first-degree premeditated murder, failing to grant a mistrial, and
admitting his probationary status into evidence.

Thompkins and his wife, Frances, had a turbulent relationship. Each had been
physically aggressive with the other at various times. Frances had burned Thompkins
with a curling iron and, at one point, had to be prevented from obtaining a knife to go
after Thompkins. In 1991 and 1992, Frances was granted two petitions for restraining
orders against Thompkins, but she later dismissed both petitions.

In August 1994, the couple separated and Frances and her daughter moved to
her mother's home. Subsequently, Thompkins began removing items from the couple's
home such as the television, air conditioner, and furniture. To vent her anger, Frances
trashed the home. On August 29, 1994, Frances applied to the district court for a third
"protection from abuse" temporary restraining order. A final restraining order, granted
on October 14, 1994, ordered Thompkins to refrain from contact with Frances for 1
year. Frances then retained an attorney to represent her in a divorce.

Around 11:30 a.m. on October 22, 1994, Thompkins arrived at Donnelly College
where Frances worked and was a student. When Frances' class ended, Thompkins
approached her. After engaging in a heated discussion, the pair got into Frances' car
and left the college. Shortly thereafter, Officer Rodney Green noticed Frances and
Thompkins sitting in a parked car. After Officer Green heard the car's horn honk, he
slowed down and observed the couple struggling. Officer Green then saw Thompkins
get out of the car and run. Next, Frances stepped out of the car, covered with blood.

Officer Green pursued Thompkins. Thompkins ran to a private residence, kicked
open the back door, and entered the home. When a backup officer knocked at the
door, Thompkins appeared and stated that the home belonged to his parents. The
home actually belonged to an acquaintance of Thompkins. The officers entered the
house, followed Thompkins into the kitchen, and noticed Thompkins was wearing a
woman's skirt. When the officers requested identification, Thompkins obtained
identification from his trousers, which were in another room and were covered with
blood. In the pocket, the officers found Frances' wedding and cocktail rings. The
officers later found a bloody sweater and two black gloves belonging to Thompkins in
the basement next to the washing machine.

When another police officer, Granger, arrived at the scene, he found Frances
slumped over in the driver's seat of her car. Granger observed a 13-inch butcher knife
lying on the ground. Attempts by paramedics to revive Frances failed, and she died at
the scene. At trial, the pathologist testified that Frances had sustained a 3-inch stab
wound to her right side, a 3-inch stab wound to her left chest, and a 7-inch wound that
severed her pulmonary artery. She also sustained multiple abrasions and contusions to
her face, blows to her head and lip, a bruise and contusion under her chin, and
abrasions on her thighs. Several of her false fingernails were ripped and torn. The
pathologist also noted defensive wounds on Frances' hands. When Thompkins was
examined for wounds after his arrest, the only wound found was a small puncture
wound on his hand. Thompkins' fingerprints were not found on the knife.

At trial, Thompkins was the sole witness for the defense. He testified that
Frances was a violent individual who would resort to any weapon at hand when angry.
He stated that, in the past, Frances had assaulted him with hot syrup, a skillet, several
knives, and a hot curling iron.

Thompkins testified that on the fatal day, he walked to Donnelly College to tell
Frances that he planned to leave town and to discuss with her the future of their
daughter and the sale of their residence. Frances agreed to let him ride in her car so
they could talk. After driving away from the college, Frances informed Thompkins she
had filed for divorce. Thompkins stated he told Frances that as long as she was
wearing his rings, she would be his wife. Frances then parked at a curb, threw her
rings at him, and began a heated discussion.

During the discussion, Thompkins noticed a patrol car drive by. At that point, he
testified that Frances was holding a knife. He stated he grabbed Frances' hand and the
knife "poked her in the side." He claimed Frances threatened to kill him and, as they
struggled over the knife, the knife "hit" Frances in the chest twice. Thompkins stated
that he never intended to harm his wife, but only to respond to her actions. He testified
that when he broke into his friend's residence, his intent was to hide from the police, not
to steal.

Thompkins was charged with one count of first-degree murder under alternate
theories of premeditation and felony murder, aggravated robbery (of Frances' two
rings), assault and battery of Frances, burglary (of his friend's residence), and two
misdemeanors. The premeditated murder charge was dismissed at the preliminary
examination. After a jury trial, Thompson was convicted of first-degree premeditated
murder and burglary. He appeals his convictions, claiming the trial court erred in (1)
instructing the jury on first-degree premeditated murder after the judge discharged him
on that charge at the preliminary hearing; (2) failing to grant a mistrial when a witness
improperly referred to his post-arrest silence; and (3) admitting into evidence the fact
that he was on probation when the crime was committed. To determine the issues
Thompkins raises in this appeal, it is necessary to review the proceedings prior to trial
in detail.

PROCEEDINGS

At the conclusion of the preliminary examination, the district judge found that
since there was no evidence of premeditation, the evidence was insufficient to bind
Thompkins over on the premeditated first-degree murder charge. Thompkins was
bound over for trial on the other felony charges and immediately arraigned on first-degree felony
murder, aggravated robbery, assault, battery, and burglary even though
the State had not filed an information charging the crimes for which the defendant was
bound over, as required by K.S.A. 22-2905.

After the judge dismissed the premeditated murder charge at the preliminary
examination and arraigned the defendant on other charges, the State chose neither to
follow the statutory procedure to appeal the dismissal of the premeditated murder
charge nor to dismiss the complaint and file a new complaint charging premeditated
murder. The State did not even file a motion requesting the judge to reconsider
dismissal of the premeditated murder charge. Instead, on February 8, 1995, without
having filed an information charging the crimes for which Thompkins had been bound
over, the State elected to file an amended information charging Thompkins with
premeditated first-degree murder as well as with the crimes for which he had been
arraigned and to which he had pled not guilty at the arraignment.

On February 13, 1995, the State filed a motion to proceed under the amended
information. At the subsequent hearing on the motion, the State contended that it was
not asking the trial judge to reverse the other judge's ruling dismissing the premeditated
murder charge at the preliminary examination, as "that matter [could] effectively be
taken up on appeal by the State, if necessary." Instead, the State asked the trial judge
to allow the case to proceed to trial under the amended information which charged both
theories of first-degree murder, i.e., premeditated and felony murder.

In denying the State's request to proceed under the amended information, the
trial judge found that the preliminary examination judge's ruling finding no probable
cause to bind Thompkins over for arraignment on a premeditated murder charge was
an adjudication that was "res judicata as far as this case is concerned." The judge
stated that, under normal circumstances, if the State had charged felony murder, he
would have allowed the State to amend the information to charge the defendant with
premeditated murder. The judge concluded that since there had been a previous
adjudication that there was insufficient evidence of premeditation to bind Thompkins
over on that charge at the preliminary examination, the State had no statutory authority
to amend the information to charge premeditated murder.

After its motion to proceed under the amended information was denied, the State
suggested that if it presented sufficient evidence of premeditated murder during the
trial, the judge could instruct the jury on all crimes supported by the evidence. The
district judge stated, "I don't think either party would disagree the Court has the ability to
mold the charge to fit the facts at trial. . . . I think this Court has the ability and statutory
authority to amend the charges to reflect what the evidence is that is adduced at trial."
Presumably the judge was referring to K.S.A. 22-3201(e), which provides that the court
may permit a complaint or information to be amended at any time before verdict or
finding if no additional or different crime is charged and if substantial rights of the
defendant are not prejudiced. Based upon the judge's ruling, the prosecutor stated that
she would not refer to premeditation in her opening statement. Defense counsel did not
object to the State's suggestion.

In a subsequent pretrial conference, the district judge stated:

"The only other issue we have to clarify is that I'm not touching Judge Boeding's prior
ruling
dismissing premeditated murder from its Information. Any evidence, as long as it's relevant,
probative,
and part of the res gestae, whether it deals with premeditation or felony murder, I'll allow in to
determine if,
in fact, there will be enough evidence of premeditation to, in fact, instruct the jury on that. The
State has to
go under the theory of felony murder in voir dire and opening remarks. You can't make
references to
premeditated murder.

"After all the evidence is in, I'll make another ruling as to whether or not premeditated
should
come in or not. That ruling will determine how we go into closing remarks and instructions."

Again, defense counsel made no comment or objection to the trial judge's ruling.

At trial, the State referred only to the charge of felony murder in the opening
statement. At the close of the State's evidence, the judge dismissed the misdemeanor
assault and battery counts. The parties then addressed whether there was sufficient
evidence for the judge to instruct the jury on premeditated murder. The State asserted
that the repeated stab wounds, the location of the stab wounds, Thompkins' attempts to
locate Frances, which included two phone calls prior to her death, and a statement
Thompkins had made to officers that his wife was going to leave him and "this" was the
only way he (Thompkins) could keep her was sufficient evidence for an instruction on
premeditated first-degree murder. The trial judge agreed with the State, found that the
evidence supported a reasonable inference of premeditation, and subsequently
instructed the jury on both premeditated and felony first-degree murder.

Although defense counsel had previously argued that the evidence was sufficient
to support only a second-degree murder or voluntary manslaughter instruction, defense
counsel did not object to the instruction on first-degree murder. The jury convicted
Thompkins of premeditated first-degree murder and burglary and acquitted him of the
aggravated robbery charge. Although the jury had been instructed that it could convict
on either or both theories of first-degree murder, because the jury found Thompkins not
guilty of the underlying felony, aggravated robbery, it could not convict him of felony
murder.

In his post-trial motion for new trial, Thompkins claimed the trial court had erred
in admitting improper evidence, failing to declare a mistrial, and violating his due
process rights. The basis of his due process claim was that (1) after the dismissal of
the premeditated murder charge because of insufficient evidence at the conclusion of
his preliminary examination, the State had failed to follow any of the statutory
procedures available to challenge the judge's dismissal of that charge and (2) after the
State's motion to proceed under the amended information was denied, the trial judge
had violated his rights by reinstating the charge of and instructing the jury on
premeditated murder. The trial judge denied the motion for a new trial and sentenced
Thompkins to life imprisonment without possibility of parole for 25 years for
premeditated first-degree murder and 17 months' imprisonment for burglary. When his
notice of appeal was filed, the defendant included additional issues that were not raised
before the district court.

DISCUSSION

Before we determine Thompkins' claims, we note that the State, without
following the statutory procedure to appeal, claims that (1) Judge Boeding's order
discharging Thompkins on the premeditated murder charge at the preliminary
examination was erroneous because the judge did not consider the evidence presented
in the light most favorable to the State and (2) the trial judge erred in denying the
State's pretrial motion to amend the information to add the charge of first-degree
premeditated murder. Since the State failed to raise these issues properly, we are
precluded from considering them in this appeal. State v. Alderson, 260 Kan. 445,
Syl. ¶
7, 922 P.2d 435 (1996).

I. Premeditated Murder Instruction

Murder in the first degree is the killing of a human being committed intentionally
and with premeditation or in the commission of, attempt to commit, or flight from an
inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.
K.S.A. 21-3401. Aggravated robbery is defined as an inherently dangerous felony.
K.S.A. 21-3436(a)(4). Although we have stated premeditated murder and felony
murder are not separate and distinct offenses, we have noted that the type of evidence
necessary to prove each of the first-degree murder charges is different. State v.
Barncord, 240 Kan. 35, 38, 726 P.2d 1322 (1986). First-degree premeditated murder,
K.S.A. 21-3401(a), is the killing of a human being done intentionally and with
premeditation. Intentionally means conduct that is purposeful and willful, not
accidental. PIK Crim. 3d 56.04(d) (1994 Supp.). Premeditation means that there was a
design or intent before the act; that is, the accused planned, contrived, and schemed
before killing the victim. PIK Crim. 3d 56.04(b) (1994 Supp.).

The ostensible purpose of the felony-murder doctrine is to deter those engaged
in dangerous felonies from killing negligently or accidentally, and the doctrine of felony
murder is not to be extended beyond the rational function it was designed to serve. To
invoke the felony-murder rule, there must be proof that a homicide was committed in
the perpetration of, or an attempt to perpetrate, a felony and that the collateral felony
was one inherently dangerous to human life. State v. Brantley, 236 Kan. 379, Syl.
¶¶ 1,
2, 691 P.2d 26 (1984).

Although first-degree premeditated murder and felony murder require different
types (elements) of proof, under certain circumstances, the accused may be charged
with and convicted of both types of first-degree murder. In State v. Jackson, 223
Kan.
554, 575 P.2d 536 (1978), the court noted that when an information charges the
defendant with premeditated murder and felony murder for the commission of a single
homicide, and the State introduces evidence on both theories at the trial, the trial court
should instruct the jury on both theories in the alternative in order to avoid confusing the
jury. 223 Kan. 554, Syl. ¶ 1. The court noted that where an information charges a
defendant with murder in the first degree on both theories--a premeditated killing and
killing while in the perpetration of a felony--a defendant is not prejudiced because the
State has previously apprised the accused that it is proceeding on both theories of first-degree
murder and that it intends to produce evidence on each theory. 223 Kan. at
556 (quoting State v. Lamb, 209 Kan. 453, Syl. ¶ 9, 497 P.2d 275 [1972]).
The court
observed that if Jackson had been separately sentenced for both first-degree murder
convictions as the result of one homicide, clearly this would constitute double
punishment for a single death and could not be allowed to stand. 223 Kan. at 557. In
other words, under circumstances where the accused intends to kill the victim prior to
committing a robbery, commits the robbery and kills the victim, the accused may be
charged and convicted of each type of first-degree murder. However, since there is
only one death, the defendant can only be sentenced for one first-degree murder.

Here, Thompkins was discharged on the charge of first-degree premeditated
murder at the preliminary examination because the judge conducting the hearing found
there was no evidence of premeditation. In addition, the trial judge had denied the
State's motion to proceed under an amended information that included a charge of first-degree
premeditated murder. Thompkins argues that, under these circumstances, it
was unfair for the State to prosecute and convict him of premeditated first-degree
murder.

In response to this argument, the State first points out that Thompkins did not
object to the premeditated murder instruction but raised the issue for the first time in a
motion for a new trial. It notes that generally, no party may assign as error the giving of
an instruction unless he or she objects before the jury retires to consider its verdict,
stating distinctly the matter to which he or she objects and the grounds for the
objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). Thompkins
counters that, under the circumstances, because the instruction was clearly erroneous
and prejudiced his substantial rights, he properly raised that issue in his motion for new
trial. See K.S.A. 22-3501. We note that although the defendant failed to object to the
instruction, a review of the record shows that he did raise the denial of his due process
rights in a motion for new trial.

The primary argument advanced by the State to support the propriety of giving
the premeditated murder instruction is that premeditated murder and felony murder are
not two different crimes but, under K.S.A. 21-3401, are merely two theories of
committing first-degree murder. The State asserts that, when a defendant is bound
over on one theory of first-degree murder, if the evidence is sufficient at trial, the judge
has statutory authority to instruct the jury on the other theory of first-degree murder. To
support this assertion, the State notes that K.S.A. 22-3201(e) provides that the court
may permit a complaint or information to be amended at any time before verdict or
finding if no additional or different crime ischargedand if
substantial rights of the
defendant are not prejudiced.

To support its claim, the State first cites State v. Smith, 225 Kan. 796, 594
P.2d
218 (1979). In Smith, following the preliminary examination, Smith was bound
over on
premeditated murder. Prior to trial, the State amended the information to charge felony
murder committed during the perpetration of a theft. On appeal, the Smith court
focused on Smith's claim that he had been prejudiced by the amendment. The court
found that Smith's failure to question the sufficiency of the preliminary examination by a
motion to dismiss pursuant to K.S.A. 22-3208 constituted a waiver of that issue on
appeal. 225 Kan. at 798. Here, unlike Smith, Thompkins challenged the sufficiency of
the evidence of premeditated murder at the preliminary examination and won;
therefore, Smith does not apply.

In further support, the State cites State v. Richardson, 256 Kan. 69, 883 P.2d
1107 (1994), where the complaint charged the defendant with first-degree felony
murder and aggravated robbery. Before arraignment, Richardson was notified that if
she was convicted of aggravated robbery, the State intended to seek the hard 40
sentence. A few days prior to trial, the State orally amended the information to include
premeditated murder as an alternative theory of a first-degree murder charge. The
State failed to notify Richardson that it would also request imposition of the hard 40
sentence if she was convicted of that crime. Richardson was convicted of premeditated
murder and sentenced to life without possibility of parole for 40 years. On appeal,
Richardson did not challenge the propriety of the amendment of the information to
charge premeditated murder, but instead argued that the hard 40 sentence was illegally
imposed for that crime because, at the time the notice required by K.S.A. 1993 Supp.
21-4624(1) was filed and served, she was charged with felony murder and aggravated
robbery, not premeditated murder. She claimed that the hard 40 sentence could be
imposed for felony murder based upon aggravated robbery, but not for premeditated
murder.

In rejecting this claim, the Richardson court noted that both premeditated and
felony murder may be charged as first-degree murder under K.S.A. 1993 Supp. 21-3401. The
court observed that aggravated robbery charged in the information was also
included in the list of inherently dangerous felonies in K.S.A. 1993 Supp. 21-3436. It
noted that when the district attorney filed and served notice that he intended to request
a separate sentencing proceeding pursuant to K.S.A. 1993 Supp. 21-4624, Richardson
was charged with felony murder and aggravated robbery. 256 Kan. at 73. The
Richardson court framed the issue as whether notice that the prosecutor intends to
seek the hard 40 sentence for a crime charged in the information allows the hard 40 to
be imposed for conviction of a crime not charged at the time statutory notice was given.
256 Kan. at 75.

The Richardson court observed that K.S.A. 1993 Supp. 22-3201(e) provided
the
court may permit a complaint or information to be amended at any time before verdict or
finding if no additional or different crime is charged and if substantial rights of the
defendant are not prejudiced. 256 Kan. at 75. Then, after finding that the hard 40
notice for the aggravated robbery conformed with the statute, the Richardson court
observed that since K.S.A. 1993 Supp. 21-4624(1) provides for filing of the notice of
intent to seek imposition of the hard 40 sentence "[i]f a defendant is charged with
murder in the first degree," under the circumstances, the hard 40 sentence for
premeditated murder was proper since Richardson had previously been notified that the
State had intended to seek the hard 40 sentence if she was convicted of an inherently
dangerous crime. 256 Kan. at 75-78.

The State now relies upon the rationale of Richardson to argue that
premeditated murder and felony murder are not different offenses, but rather two
theories of culpability for the same offense. However, the rationale of Richardson
does
not apply to Thompkins because the facts in Richardson are distinguishable. Here,
there had been a judicial determination at the preliminary examination that there was
absolutely no evidence of premeditation, and later the trial judge refused to allow the
State to amend the information prior to trial.

The State next relies on State v. Grissom, 251 Kan. 851, 840 P.2d 1142
(1992),
where Grissom was charged with multiple crimes, including first-degree murder by
premeditation and murder in the commission of a felony, either aggravated burglary or
aggravated kidnapping. After the preliminary examination, the judge found there was
no probable cause to bind Grissom over on the charge of felony murder committed
during the perpetration of an aggravated kidnapping, but bound him over on the other
charges. At the conclusion of the State's presentation of evidence at trial, the State
moved to amend the complaint to add a charge of felony murder in the perpetration of
aggravated kidnapping. Over Grissom's objection, the trial court granted the State's
motion.

Grissom was convicted of numerous crimes, including first-degree murder,
aggravated burglary, robbery, and aggravated kidnapping. On appeal, Grissom
claimed the amendment to include aggravated kidnapping caused him irreparable
prejudice because it presented a "new theory" of felony murder upon which the jury
could find him guilty. The State argued there was no error because it was not required
to amend the complaint for the jury to be instructed on an alternative theory of felony
murder. The Grissom court agreed with the State's argument, noting that an
amendment of the complaint to include felony murder based on aggravated kidnapping
was not necessary. 251 Kan. at 926-27.

In reaching this conclusion, the Grissom court relied, in part, on State
v.
Barncord, 240 Kan. 35, 726 P.2d 1322 (1986). In Barncord, at the conclusion
of the
preliminary examination, the State moved to amend the complaint charging aggravated
robbery and first-degree premeditated murder to include an additional charge of felony
murder based upon the killing of a human being during the commission of the
aggravated robbery. The judge bound the defendant over on the crimes charged in the
complaint and took the motion to include an additional crime under advisement. Prior
to trial, the judge granted the State's motion to amend. Barncord was convicted of first-degree
felony murder and aggravated robbery. On appeal, Barncord claimed that the
amendments to the complaint were prejudicial. The Barncord court, noting that it
was
not necessary to amend the complaint because no additional or different crime was
charged, stated:

"Premeditated murder and felony murder are not separate and distinct offenses. Rather, a
prosecution
under the felony-murder rule changes the type of proof necessary to prove first-degree murder.
[Citation
omitted.] The State is relieved of the burden of proving premeditation and malice when the
victim's death
is caused by the killer while he is committing another felony." 240 Kan. at 38.

The Barncord court also found that Barncord, who had been bound over on
premeditated murder, was aware that the judge had taken under advisement the
State's motion that he be bound over for felony murder. 240 Kan. at 37-38. Following
the rationale of Barncord, the Grissom court determined that, under the
circumstances,
Grissomwas not prejudiced by the amendment.251 Kan. at 927.

Next the State cites State v. Starr, 259 Kan. 713, 915 P.2d 72 (1996), where
Starr was
charged, bound over, and arraigned on premeditated murder or, in the alternative, felony murder,
aggravated burglary, and aggravated assault. Prior to trial, the State dismissed the premeditated
murder and aggravated burglary charges and proceeded to trial on felony murder and aggravated
assault. At the close of the State's evidence, the State moved to reinstate the charge of
premeditated murder. Starr objected, arguing that he would be prejudiced due to surprise. The
trial court allowed the amendment, finding no new crime had been charged. On appeal, Starr
argued that the trial court did not have jurisdiction to try him on the charge of premeditated
first-degree murder after the State had dismissed that charge prior to trial.

The Starr court noted that determining whether an amendment under K.S.A.
22-3201(e)
should be permitted required a two-part analysis: (1) whether an additional or different crime
was charged by the amendment and (2) whether the amendment prejudiced the substantial rights
of the defendant. 259 Kan. at 718. The Starr court, citing Barncord,
observed that a prosecution
under the felony-murder rule changed the proof necessary to prove first-degree murder by
relieving the State of the burden of proving premeditation and malice. 259 Kan. at 719. The
Starr court observed that the facts in Starr were similar to both
Grissom and Barncord. The
court noted that, although the State could have originally proceeded on both the premeditated and
felony-murder theories without electing between them, the State had elected to dismiss the
charge of premeditated murder after the arraignment. Therefore, the question in
Starr was what
effect the dismissal of the charge after the arraignment had on the State's ability to later proceed
on both theories of first-degree murder. 259 Kan. at 719.

The Starr court first addressed the defendant's argument that once a charge is
dismissed,
the district court loses jurisdiction over that charge. The court determined that since thecharge
of first-degree felony murder had not been dismissed, the district court retained jurisdiction over
the statutory crime of first-degree murder. 259 Kan. at 720.

The Starr court next addressed the defendant's due process argument. Starr
argued that
by dismissing the premeditated murder charge, the State had indicated to the defense counsel that
premeditation and intent were neither in dispute nor legally relevant and, therefore, he had no
reason to prepare a defense against those issues. According to Starr, the amendment was a
surprise, causing prejudice and denying him due process of law. In rejecting the due process
argument, the Starr court noted that during oral argument, Starr's counsel had
asserted that
questions he would normally have asked witnesses upon cross-examination were not asked
because the charge of premeditated murder had been dismissed at the beginning of trial. When
asked by the court what questions would have been asked, counsel could furnish none. The
Starr
court stated:

"The entire defense to the charge of murder at trial was one of alibi. On cross-examination,
the defendant,
consistent with his defense, attacked the credibility of the State's witnesses placing him at the
scene. Under these
circumstances, we perceive no prejudice flowing from the amendment at the close of the State's
case.

"Moreover, the State's amendment to proceed on the theory of premeditated murder
created no unusual
surprise for the defendant. Originally, the defendant was charged under both theories, and only
immediately prior
to trial was the premeditated murder theory dismissed. Under the circumstances, the defendant
should have been
prepared to defend against both theories.

"Finally, the theory of felony murder relieves the State of the burden of proving
premeditation and malice.
[Citations omitted.] Instead, these elements are established through proof of the collateral
felony. [Citation
omitted.] Absent this theory, the State must prove premeditation. The amendment at the close of
the State's case to
include the alternate theory of first-degree premeditated murder had the effect of creating a
greater burden on the
State by requiring the State to prove intent and premeditation." 259 Kan. at 720-21.

It is important to note it was only after there was a judicial determination of probable
cause and after Starr was bound over and arraigned on the charge of premeditated first-degree
murder that the State dismissed the charge. Thompkins, on the other hand, was not bound over
on premeditated first-degree murder because at the preliminary examination the judge found the
evidence insufficient.

These cases indicate that the trial judge can allow an amendment of a complaint or
information to charge premeditated murder when no additional crime is charged and the
defendant's substantial rights are not prejudiced. None of the cases relied upon by the State
deals with the consequences of a judge's dismissal of a first-degree premeditated murder charge
because of insufficient evidence at the preliminary examination and a subsequent refusal by the
trial judge to allow the State to proceed on an amended complaint which included that charge.

II. Due Process

One of the substantial rights of an individual charged with a crime is the right to due
process. The essential elements of due process of law are notice and an opportunity to be heard
and to defend in an orderly proceeding adapted to the nature of the case. Crane v. Mitchell
County U.S.D. No. 273, 232 Kan. 51, 56, 652 P.2d 205 (1982).

Except so far as Congress may provide penal remedies for execution of federal powers,
the bulk of authority to legislate on the subject of criminal justice is the responsibility of the
individual states. U.S. Const., art. 1, § 8. The State has power to prescribe a method of
procedure in prosecution for violation of its criminal laws, and it is immaterial whether its laws
are the result of statute or whether they are decisions of Supreme Court as to what state law is.
Andrews v. Hand, 190 Kan. 109, 115, 372 P.2d 559, cert. denied 371
U.S. 880 (1962).

III. The Code of Criminal Procedure

The provisions of the Kansas Code of Criminal Procedure (Code) govern proceedings in
all criminal cases in the courts of the state of Kansas. K.S.A. 22-2102. The Code is intended to
provide for the just determination of every criminal proceeding. Its provisions are construed to
secure simplicity in procedure, fairness in administration, and elimination of unjustifiable
expense and delay. K.S.A. 22-2103. As related to criminal law and procedure, "substantive law"
is that which declares what acts are crimes and prescribes punishment therefor, whereas
"procedural law" is that which provides or regulates steps by which one who violates a criminal
statute is punished. State v. Augustine, 197 Kan. 207, Syl. ¶ 1, 416 P.2d 281
(1966).

Thompkins admits that, under proper circumstances, the Code permits a complaint or
information to be amended before a verdict or finding if no additional or different crime is
charged and if his substantial rights are not prejudiced. Thompkins argues that because the State
disregarded the statutory procedures, the premeditated murder conviction violated his procedural
due process rights and he is entitled to a new trial on that charge.

We note that rules of practice and procedure contained in the Code are devised to
promote the ends of justice, not to defeat them, and orderly rules of procedure should not require
sacrifice of the rules of fundamental justice. See Hormel v. Helvering, 312 U.S.
552, 557, 85 L.
Ed. 1037, 61 S. Ct. 719 (1941). A determination of whether Thompkins' substantive and
procedural due process rights were violated must first take into account the consequences of the
State's actions after the dismissal of the premeditated murder charge at the preliminary
examination.

Although the Fifth Amendment to the United States Constitution provides that no person
shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or
indictment of a grand jury, the states can commence a prosecution by filing a complaint and
presenting sufficient evidence to a magistrate conducting a preliminary examination to bind the
defendant for arraignment and trial. Even though there is no constitutional right to a preliminary
examination, the United States Supreme Court has held that the Fourth Amendment, by
incorporation of the Due Process Clause of the Fourteenth Amendment, requires the states to
provide substantive and procedural due process rights to insure a fair and reliable determination
of probable cause prior to detention and prosecution of an individual. See Gerstein v.
Pugh, 420
U.S. 103, 112-13, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). Therefore, if the State elects not to
proceed with a presentment to a grand jury, there are substantive and procedural due process
requirements it must provide.

The Code requires that every person arrested on a warrant charging a felony shall have a
right to a preliminary examination before a magistrate, unless such warrant has been issued as a
result of an indictment by a grand jury. K.S.A. 22-2902(1). The right to a preliminary
examination in Kansas is purely statutory. It is mandated neither by general constitutional
privileges nor the requirement of constitutional due process. State v. Smith, 225
Kan. 796, Syl. ¶
1, 594 P.2d 218 (1979). The United States Supreme Court discussed the constitutional
requirements of a preliminary examination in Gerstein v. Pugh, 420 U.S. at 112-13
(citing
Johnson v. United States, 333 U.S. 10, 13-14, 92 L. Ed. 436, 68 S. Ct. 367 [1948]). The
Court
stated: "To implement the Fourth Amendment's protection against unfounded invasions of
liberty and privacy, the Court has required that the existence of probable cause be decided by a
neutral and detached magistrate whenever possible." 420 U.S. at 112.

The Gerstein Court held that the Fourth Amendment, incorporated into the
Fourteenth
Amendment, requires that the states afford a defendant in a criminal case a timely judicial
determination of probable cause as a prerequisite to detention. 420 U.S. at 126.

The preliminary examination is an important part of Kansas criminal procedure. It is
protection for an accused and an instrument for justice. The preliminary examination affords the
person arrested as a result of a complaint an opportunity to challenge the existence of probable
cause for further detention or for requiring bail and apprises the accused about the nature of the
crime charged and the sort of evidence he or she will be required to meet when subjected to final
prosecution. State v. Boone, 218 Kan. 482, 485, 543 P.2d 945 (1975), cert.
denied 425 U.S. 915
(1976). The principal purpose of a preliminary examination is the determination of whether it
appears that a crime has been committed and probable cause to believe the defendant committed
the crime. To bind the accused over for arraignment and trial, the State need not establish guilt
beyond a reasonable doubt. State v.Jones, 233 Kan. 170, Syl. ¶
2, 660 P.2d 965 (1983).

At the close of a preliminary examination, the magistrate's choices are to bind the
defendant over or to enter an order of discharge. State v. Leslie, 237 Kan. 318, 319,
699 P.2d
510 (1985). The examining magistrate has no power to acquit but only the power to discharge
from custody. Such a discharge is not a bar to another preliminary examination. State v.
Turner,
223 Kan. 707, 709, 576 P.2d 644 (1978). Where the evidence is insufficient to show that it
appears that a felony has been committed and that the defendant committed it, the magistrate
must discharge the defendant. State v. Engle, 237 Kan. 349, 350, 699 P.2d 47
(1985). If the
evidence is sufficient, the defendant must be bound over for arraignment. K.S.A. 22-2905(1)
requires the prosecutor to file an information charging only the crime or crimes for which the
defendant is bound over prior to the arraignment.

When the examining magistrate fails to bind the defendant over to the district court for
trial on a charge which is warranted by the evidence, one of the State's remedies is to dismiss all
charges and file another complaint or file an appeal pursuant to K.S.A. 22-3602. See
Turner,
223 Kan. at 709. Here, the State acknowledged that it was aware that it could appeal the
dismissal of the complaint pursuant to K.S.A. 22-3602(b)(1), which provides that appeals to this
court may be taken by the prosecution from cases before a district judge as a matter of right from
an order dismissing a complaint, information, or indictment. The State chose neither to appeal
the judge's discharge of the claim of premeditated murder nor to dismiss the remaining charges
and file another complaint. Therefore, Thompkins was bound over and arraigned on the charges
which the judge determined were sufficiently supported by the evidence. These charges did not
include the charge of premeditated murder.

Here, following the dismissal of the charge of premeditated murder at the preliminary
examination, the State did not (1) dismiss the complaint, file a new complaint, and present
evidence at a subsequent preliminary examination; (2) follow the statutory procedure to appeal
the judge's dismissal of the charge; or (3) file an information stating the crimes for which the
defendant was bound over. Instead, after the defendant had been arraigned without a proper
information, the State chose to file an amended information which included the premeditated
murder charge.

The existence of a complaint, information, or indictment filed against a defendant is a
fundamental prerequisite to an arraignment. State v. Smith, 247 Kan. 455, Syl.
¶ 4, 799 P.2d 497
(1990). The arraignment in a criminal proceeding is the formal act of calling the defendant
before a court having jurisdiction to impose sentence for the offense charged and informing the
defendant of the offense charged by reading the complaint, information, or indictment, or stating
to defendant the substance of the charge, and asking defendant whether he or she is guilty or not
guilty or to otherwise plead as permissible by law. 247 Kan. 455, Syl. ¶ 3.

Prior to trial, the judge denied the State's request to proceed under the amended
information. It was only after the State had presented its evidence to the jury that the trial judge
agreed to instruct the jury on premeditated murder. At that point in the proceedings, Thompkins
had lost his right under K.S.A. 22-3208 to challenge any defect in the proceedings resulting from
his discharge on the charge of premeditated murder after the preliminary examination.

Under these circumstances, Thompkins' substantial substantive and procedural due
process rights were prejudiced; therefore, instructing the jury on premeditated murder was
improper. We are required to set aside Thompkins' conviction for premeditated murder and
remand the case to the district court for a new trial on the premeditated first-degree murder
charge. Because we have ordered a new trial on the premeditated murder charge, we will not
consider the other issues raised relating to this charge.

IV. Post-Arrest Silence

During the State's direct examination of a police officer, the officer testified that he was
assigned to interview Thompkins. He stated that he gave Thompkins the Miranda
warnings.
Then the officer was asked, "Did Mr. Thompkins make any statement to you at that time?" The
officer replied, "A couple. I advised him of his rights and he told me he had nothing to say at
that point." Counsel immediately objected and moved for a mistrial.

After reviewing the record, we find that the State improperly introduced evidence that the
defendant had invoked his right to silence. Unless a different factual situation exists in the next
trial, the fact that the defendant invoked his right to remain silent should not be admitted into
evidence.

V. Evidence of Probation

For his final issue, Thompkins contends the trial court erred in allowing into evidence the
fact that he was on probation when the crime was committed and that he was required to report to
his probation officer on a regular basis. Prior to trial, the judge ruled that evidence of
Thompkins' prior record would not be admitted into evidence unless the defendant "opened the
door." At trial, Thompkins testified that his purpose in going to Donnelly College on the day of
the murder was to tell Frances that he was leaving town for Louisiana that day and to discuss
plans for their daughter and the sale of their house. He stated he had been planning to leave
Kansas for 3 days.

At trial, out of the presence of the jury, the prosecutor stated she intended to call
Thompkins' probation officer, Jack Phan, as a rebuttal witness. She indicated to the judge that
the day before the murder (October 21), Thompkins was released from the Wyandotte County
jail, where he had been held on a probation violation for failure to make restitution payments and
failure to take a drug screening test. At a prior hearing in district court in the presence of his
probation officer, Thompkins had stated he would make a $100 payment by borrowing money
from various people and applying for disability. On the basis of this testimony, the district judge
released Thompkins from jail. Thompkins received a 30-day extension to make the payment and
was ordered not to leave the state without permission.

Defense counsel objected to admission of the testimony, arguing the State was attempting
to backdoor Thompkins' prior criminal record into evidence. The trial court agreed to limit the
testimony and instructed the probation officer not to reveal to the jury that the purpose of the
hearing was to determine if Thompkins' probation should be revoked. The probation officer
would be allowed to testify only as to the conditions of Thompkins' probation. The probation
officer testified that the conditions of Thompkins' probation were that Thompkins make a $100
payment within 30 days, report in person to him at least twice per month before the next hearing,
and not leave the state without permission. The probation officer testified that Thompkins had
not advised him that Thompkins planned to leave the state.

Thompkins contends this evidence was of limited probative value and highly prejudicial
because it degraded him and apprised the jury of other crimes he had committed without
fulfilling the requirements of K.S.A. 60-455. Thompkins argues the admission of the evidence
was error and violated his right to a presumption of innocence.

In support, Thompkins cites cases where the court has held the defendant did not receive
a fair trial due to insinuations that he had appeared in a succession of police lineups, State
v.
Taylor, 198 Kan. 290, 424 P.2d 612 (1967), or because he was required to appear in court
in
prison garb, State v. Hall, 220 Kan. 712, 556 P.2d 413 (1976). Thompkins also
relies upon cases
dealing with the prosecution's improper use of K.S.A. 60-455 other crimes evidence in
cross-examination of a defendant, such as State v. Harris, 215 Kan. 961, 529 P.2d
101 (1974), and
State v. Macomber, 241 Kan. 154, 734 P.2d 1148 (1987), cert. denied 493
U.S. 842 (1988).

Thompkins, in relying on the cited cases, fails to note that the evidence here was admitted
as rebuttal evidence.

"Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It
may tend to
corroborate evidence of a party who first presented evidence on the particular issue, or it may
refute or deny some
affirmative fact which an opposing party has attempted to prove. It may be used to explain,
repel, counteract, or
disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence
includes not only
testimony which contradicts the witnesses on the opposite side, but also corroborates previous
testimony. The use
and extent of rebuttal [evidence] rests in the sound discretion of the trial court and its ruling will
not be reversed
unless it appears the discretion has been abused to a party's prejudice." State v.
Prouse, 244 Kan. 292, Syl. ¶ 2, 767
P.2d 1308 (1989); State v.Weigel, 228 Kan. 194, Syl. ¶ 9, 612
P.2d 636 (1980).

The court addressed a similar issue in State v.Hall, 246 Kan.
728, 793 P.2d 737 (1990),
where the defendant appealed his convictions of first-degree murder and two counts of theft.
Hall's former wife had testified that she and Hall had driven their truck to visit friends in April
1984. Hall contended that the trial court erred in allowing the State to elicit rebuttal testimony
that the April visit was not possible because in March 1984 , the truck had been confiscated as
stolen by Hall.

The court rejected Hall's contention that the admission of the rebuttal evidence was
improper because it violated the requirement for admission of K.S.A. 60-455 (other crimes)
evidence stated in State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974), overruled
on other groundsState v. Mims, 220 Kan. 726, 556 P.2d 387 (1976). The Hall court
noted Bly was a case
interpreting K.S.A. 60-455 but, in Hall's case, the testimony was not introduced under K.S.A.
60-455. The Hall court found that the defendant had opened the door to the
testimony regarding
confiscation of the stolen truck by attempting to impeach his former wife's testimony that they
had visited friends on the same trip during which the victim was killed. Under the
circumstances, the State's rebuttal evidence which contradicted Hall's version was proper
because "'[w]hen the defendant opens a subject on direct or cross-examination, the State may
develop and explore various phases of that subject.'" 246 Kan. at 743 (quoting State v.
Chatmon,
234 Kan. 197, 203, 671 P.2d 531 [1983]).

A similar issue regarding rebuttal testimony was addressed in State v.
Burnett, 221 Kan.
40, 558 P.2d 1087 (1976). In Burnett, the defendant appealed his convictions of
first-degree
murder and aggravated robbery. He argued the trial court erred in allowing rebuttal witnesses to
testify to prior crimes he committed in Oklahoma. The defendant contended this was improper
rebuttal testimony in violation of K.S.A. 60-421 (limitations on evidence of conviction of crime
as affecting credibility) and 60-455.

The Burnett court disagreed, noting that the evidence was introduced solely
for rebuttal
purposes. 221 Kan. at 43. The court, in distinguishing evidence of other crimes and civil
wrongs, stated:

"Rebuttal evidence is that which is presented to deny some fact an adverse party has
attempted to prove or has
placed in dispute. [Citations omitted.] . . . The use and extent of rebuttal rests in the sound
discretion of the trial
court. [Citations omitted.] The ruling of the trial court will not be ground for reversal unless it
appears discretion
has been abused to appellant's prejudice. [Citations omitted.]"

The court continued:

"When a defendant takes the stand, he takes his character and integrity with him and
cannot complain
because he is subjected to the same inquiries and tests as other witnesses. [Citations omitted.]
This includes the
right to cross-examine a defendant within the limits of K.S.A. 60-421. [Citation omitted.]
Furthermore, cross-examination of an accused in a criminal case is subject to the same rules
which apply to any other witnesses.
[Citation omitted.] For this reason, a defendant waives immunity on matters to which he testifies
and may be cross-examined further on those subjects. . . .

. . . .

"While a defendant has a privilege to testify or refuse to do so in his own defense, and is
protected by
K.S.A. 60-421 and 60-455, those privileges and protections cannot be construed as a license to
commit perjury with
impunity. [Citations omitted.]" 221 Kan. at 43-44.

Here, Thompkins stated on direct examination that his reason for visiting Frances at
Donnelly College was to tell her he was leaving town and moving to Louisiana. Having opened
the door to this topic (leaving town), it was proper rebuttal for the State to call the probation
officer to testify that there was a court order preventing Thompkins from leaving town without
permission. Thompkins' analysis is flawed because the testimony was admitted as rebuttal
evidence and not as K.S.A. 60-455 evidence.

Thompkins' conviction for burglary is affirmed. Thompkins' conviction for premeditated
first-degree murder is reversed, and the case is remanded for further proceedings on the charge of
premeditated first-degree murder.

Affirmed in part, reversed in part, and remanded.

ALLEGRUCCI, J., concurring: I concur in the result reached by the majority. I agree that
Thompkins' due process rights were violated; however, in my opinion, the changes made by the
legislature in 1994 had an impact on that determination. In 1994, the legislature amended the
parole/postrelease eligibility statute, K.S.A. 1993 Supp. 22-3717, to provide for life
imprisonment without possibility of parole for 25 years for premeditated murder (K.S.A. 1994
Supp. 22-3717[b][1]), while the maximum sentence for felony murder is life imprisonment with
parole eligibility after 15 years (K.S.A. 1994 Supp. 22-3717[b][2]). This court has held that
felony murder and premeditated murder are not separate offenses but, rather, alternative means of
committing first-degree murder. By providing for different punishments for the "same offense,"
the legislature has brought into question that decision, raising several questions that this court
will be required to address in future first-degree murder cases. I am not prepared to find that
premeditated murder and felony murder are separate offenses, but the 1994 changes affect the
determination of whether Thompkins' due process rights were violated.

SIX, J., dissenting: Solly Thompkins asserts that the district court had no jurisdiction to
instruct on first-degree premeditated murder. He also reasons that felony murder and
premeditated murder are no longer the same offense. The majority locates a due process issue
and reverses. I disagree with both Thompkins and the majority. Thompkins neither raises a due
process argument regarding the premeditated murder instruction nor establishes that he was
prejudiced in advancing his defense. He was not surprised by the instruction.

I would affirm Thompkins' conviction for premeditated murder. Count I of the
information charged Thompkins with first-degree felony murder, citing K.S.A. 21-3401. Felony
murder and premeditated murder are alternate theories of first-degree murder although different
punishments are now provided. They are not separate and distinct offenses but are alternate
means of committing the same crime. When Thompkins was bound over on the first-degree
felony murder charge, the court retained jurisdiction to instruct the jury on either theory. The
State had authority to amend the complaint under K.S.A. 22-3201(e) to include premeditated
murder. The cases on the alternate means character of murder, cited in the majority opinion,
reflect our consistent endorsement of murder as one offense. See State v. Starr, 259
Kan. 713,
718, 719, 915 P.2d 72 (1996), for a recent affirmation. How can premeditated and felony murder
be separate crimes when there is only one homicide? First- degree murder has unique
characteristics forged both by legislative action (K.S.A. 21-3401) and our decisions.

The questions at the preliminary hearing were: (1) Was a felony committed, and (2) is
there probable cause to believe Thompkins committed it. Thompkins was properly bound over
on first-degree felony murder.

Thompkins failed to object to the premeditation instruction at the instruction conference.
The court asked, "Have both sides had an opportunity to go over the instructions?" Thompkins'
counsel responded, "I have your honor. I have no objections to them." Generally, no party may
assign as error the giving of an instruction unless an objection is made before the jury retires.
The objection must state distinctly the matter objected to and the grounds for the objection,
(unless the instruction is clearly erroneous). K.S.A. 22-3414(3).

Thompkins failed to object to the court's ruling that it would later decide if a
premeditation instruction was justified. The court said: "After all of the evidence is in, I'll make
another ruling as to whether or not premeditated should come in or not. That ruling will
determine how we go into closing remarks and instructions." The court then asked defense
counsel for any comments. Counsel responded: "I have no comments on the Court's
ruling'.
(Emphasis added.) Thompkins knew before trial commenced that the State would be asking for
a premeditation instruction if the evidence supported it.

The majority suggests that the State could have taken an appeal after the preliminary
hearing. A K.S.A. 22-3602(b)(1) appeal would have been proper if the complaint had been
dismissed in its entirety. State v. Freeman, 234Kan. 278, 670 P.2d
1365 (1983). Here,
however, Thompkins was bound over on Count I, murder (under the felony-murder alternative)
and on all other charges.

We said in Freeman:

"[T]here is no statutory authority for the State to appeal from the dismissal in a criminal
case of some of the
counts of a multiple-count complaint, information or indictment while the case remains pending
before the district
court on all or a portion of the remaining counts which have not been dismissed and which have
not been finally
resolved." 234 Kan. at 282.

See State v. Clovis, 254 Kan. 168, 171, 864 P.2d 687 (1993).

Although not raised by Thompkins, the majority suggests that he lost his K.S.A. 22-3208
rights to challenge any defect in the proceedings by the time the court agreed to instruct on
premeditated murder. That point in time was at the instruction conference. Defense counsel told
the court he had no objection to the instructions. K.S.A. 22-3208 is directed to motions before
trial. The majority also advances on its own a K.S.A. 22-2905(1) procedural concern about the
filing of the information. Thompkins has not raised a K.S.A. 22-2905(1) issue. Any concern is
countered by K.S.A. 22-3208(3) (defects in the information not raised before trial, except as to
jurisdiction, are waived).

The district court protected Thompkins' interest by excluding reference to premeditation
in the State's opening statement. The court evaluated the first-degree murder evidence, listened to
argument of counsel on what the evidence showed, and reasoned that the State had established a
reasonable inference of premeditation. The record reflects no surprise, no obligation, and no
prejudice.